Opinion – Page 141 – HOA Constitutional Government

AZ tenants have more AG protection than property owners in HOAs

The current AZ Attorney General, Tom Horne, proudly displays and offers a 48 page handbook for tenants, basically covering the Landlord and Tenant Act, ARS 33-1301 et seq. It contains 2 full pages of where to get help, and sample forms. It can be found under Publications/Handbooks. What about a handbook for homeowners living in HOAs covering Condo and planned communities acts?

Both the L & T and HOA acts deal with private contracts, so that can’t be the distinguishing excuse not to provide a warning guide or advisory, which I’ve repeatedly urged be developed and quickly offered to homebuyers and those already under HOA regimes. It’s not like there are no issues of material fact, like misrepresentation, consent to be governed, loss of individual property rights, freedoms, privileges and immunities; and private governments not subject to the Constitution. Or that problems do not continually appear in the media. Homeowners who have written the AG’s office, and the Real Estate Commissioner receive a standard, No my job. Get the Legislature to write new laws.

Unfortunately, the problem you complained about is not within our jurisdiction. Our office enforces the Consumer Fraud Act, however, the Act does not allow our office to pursue private disputes. Our office represents the state of Arizona and cannot act as a private attorney for individual citizens.

The position of the Arizona Attorney General is unacceptable. The public policy position of the State of Arizona is unacceptable. It strongly reflects HOA protectionism even to the extent that the State permits the denial of constitutional protections for the people. And in a state that has loudly and firmly urged support for the Constitution and the need to uphold the laws of the land! I offer my Truth in HOAs disclosure poll — please vote your conscience, showing a solid rejection of these hidden facts, and the KPHO, HOA Syndrome survey: YES, it exists!,poll showing that HOA boards do inflict emotional stress on homeowners who disagree with the board.

I urge the Legislature to require ADRE and the Attorney General’s Office to provide a Truth in HOAs handbook containing the facts, the negative aspects, of living in an HOA. Such a handbook must address the issues contained in the Truth in HOAs Disclosure Agreement as set forth in the poll mentioned above.

Arizona Tenants’ Rights and Responsibilities Handbook

AZ independent HOA tribunal again under constitutional attack

The Arizona independent tribunal, Office of Administrative Hearings (OAH), must really be hurting not only the CAI lawyers, but all lawyers, too. OAH does not pay attorney fees and HOAs cannot expect to get fees from the homeowner. They have to pay from the total of assessments collected. And with a national law firm at its side, it will be paying big, very big.

In the opening rounds of this second period of adjudication, the first ending with 42% of the cases won by the homeowner, a national law firm undertook the defense of an HOA on the issue of an amendment to the CC&Rs. The amendment forced a homeowner to stop building her home, which she was legally entitled to under under her existing CC&Rs. In Wozniak v. North Slopes POA, OAH No. 11F-H1112001-BFS, filed July 22nd, the attorney seeks dismissal of the case based on 2 black and white claims: the homeowner failed to indicate what law or governing document provision was violated, and that North Slopes was, by definition, not a planned community and, therefore, not subject to OAH adjudication – the HOA does not own any property in the subdivision.

BUT, this did not stop Karen Karr of the national firm of Lewis Brisbois Bisgaard & Smith from an opening barrage against the constitutionality of the old statute — old news and moot – and the claims that the new statute is also unconstitutional. She is a labor management attorney. Obviously, the ALJ would dismiss the Petition based on the “black and white” laws and need not entertain the constitutionality question (as an earlier OAH case appealed to the superior court bypassed the constitutionality question). So why the fuss? Headlines? Coaching from you know who lobbyist firm who got scathed by its initial foray into the constitutionality issue, and seeks others to do its work? The one who promised to attack the new statutes? Could that be Carpenter Hazlewood?

The attorney spends 1 1/2 pages (of 7) on reciting history, not applicable to the new statute, and fails to state the fact that the AZ Supreme Court did not allow the appellate case of Gelb to serve as precedent when it declined to hear an appeal. In another 1/2 page, unsupported allegations are made as to the constitutionality of the new statute – no case law, no constitutional law, no administrative agency law. Why on earth bring constitutionality up in such a feeble manner?

My guess is that we will see another attempt, maybe more, to unseat justice for homeowners in HOAs. I mean, it took Carpenter Hazlewood 4 tries before it won the appellate court, but not precedent, decision in Gelb.

BTW, why DFBLS did not outright reject this Petition is a mystery. Clearly it did not meet the requirements of proper adjudication. (While the new DFBLS Petition form asks for specific statutes alleged to have been violated, it does not ask about specific provisions of the governing documents that are alleged to have been violated). If DFBLS had properly rejected the Petition, it would have had to return the $550 fee.

Furthermore, I can understand the ALJ giving the Petitioner a chance to answer, but this ALJ, who is experienced in HOA matters, does not ask the homeowner to address these jurisdictional issues right-out, but seeks a pre-trial conference and entertains a motion for continuance.

Is there a “plot” to raise OAH expenses on frivolous matters in order to obtain evidence for a fee increase? An increase that was already on the drawing board even before the law became effective in July.

Why is CAI member firm of Adams Kessler allowing criticism of LA Times HOA column?

Scanning the Adams-Kessler Blog, Davis-Stirling Condo Law, under Davis-Stirling.com (not a government website) revealed some 6 comments critical of the LA Time column written by Stephen Glassman and Donie Vanitzian. Just in the past 3 weeks, and nothing before the week of Sept. 18th. I am wondering what’s up?

Glassman and Vanitzian are also the authors of Villa Appalling!: Destroying the Myth of Affordable Community Living (2002). Vanitzian is the author of the Thomson-West legal treatise, California Common Interest Development — Homeowner’s Guide (2006-2007). Glassman is a practicing lawyer and Vanitzian holds a JD degree.

Lawrence Stirling, co-author of the California laws, is a Senior Counsel at Adams Kessler. Adrian Adams and Gary Kessler are members of Community Associations Institute, CAI, and Kessler is active in CAI’s legislative action committees (LAC) helping to shape the national lobbying organization’s (that’s CAI’s) view of the HOA industry. Among other things, in 2004 CAI had cautioned the NJ appellate court in the Twin Rivers free speech case against “the unwise extension of constitutional rights to the use of private property by members (as opposed to the public) . . . .” (Amicus curiae Community Association Institute (“CAI”), Committee For A Better Twin Rivers v. Twin Rivers Homeowners Association (TRHA), Docket No. C-121-00., p.19).

It seems that CAI California is feeling the heat from homeowner advocates like CAI is feeling in Arizona. The criticisms of the column shown below, except for the outright hostility and ignorance of the posters of the Oct. 2nd and Sept. 25th entries, centered around the authors’ statement that the hired-hand (my wording) management company people have no place at a board meeting. “Management employees, like any other vendor, do not belong at association board meetings. Although they may be invited to attend, they should not be taking minutes or offering suggestions on the conduct or content of the meetings.” This reply came under the September 4, 2011 column heading, How can you break management’s hold on board? It concerned a homeowner’s letter that the “board is so entrenched with this management company that it can no longer act in the best interests of our owners and the association.”

I was surprised that A – K did not provide a response with respect to the legal status of the management people, who are neither board nor HOA members. In my view, they are like the typical member who can be seen and not heard unless asked a specific question, and otherwise not participate in the discussions.. Otherwise, the cry of “we are poor volunteers” rings hollow as the board has turned the management of the HOA over to hired hands, while forgetting its ultimate legal responsibilities to the HOA, and to oversee acts and actions of its management agent.

Given the Blog as is, with its entries and lack of A – K responses, it seems that CAI is feeling the heat and felt the need to counter-attack voices for homeowner rights, and to silence Glassman & Vanitzian, the true advocates who are fighting for homeowners who live in regimes that deny their constitutional protections.

Adams Kessler Condo Law Blog

(Oct. 2) LA Times. The discussion I had with the LA Times “Readers Rep” in 2005 got me nowhere. I think having their authors billed as HOA specialists is akin to having a self-proclaimed racist writing a column on fair housing. Sure, they are somewhat familiar with the issues but their take on them is biased and does not serve the public well. -Marla H.

(Sept. 25) LA Times. The LA Times columnists who pontificate about HOAs and present such misleading information regarding the operation of HOAs are a thorn in everyone’s side. Their views are so inaccurate and counterproductive to creating harmony between owners, board members and managers. Surely there is some avenue for rebuttal? Why is the LA Times so resistant to permitting rebuttals to the content of the column? Any ideas as to how we can find an avenue to present truthful information? -Diana S.

FEEDBACK (Sept 18)

LA Times #1. Thank you for your thoughtful response to whether managers should attend board meetings and take minutes. Sorry to say, the Los Angeles Times places little value on providing balanced information. The writers of the column have a clear bias against boards, attorneys and managers. If they could, they would abolish all HOAs. Why would you abolish a form of ownership that has made affordable housing possible to millions of people? I think it’s important to make it very clear that these people give bad advice and boards should not rely on their column for any guidance. -Judy C.

LA Times #2. Thank you for your rebuttal to the L.A. Times article!!! -Jan H.

LA Times #3. It is clear that the author has a bias against management companies. The manager’s job is to provide advice to the board that keeps them on the straight and narrow. Can the board assign some of its duties to its manager? You bet! Should it? This is a matter of contract, but in most cases it is a resounding “yes.” It has been my experience that the larger the association, the more complex it becomes, and with this comes the need for a manager with greater and more diverse skill sets. -Jim S.

LA Times #4. Managers at meetings???? Of course. We pay them to help manage and advise us even though all final decisions come from the BOD. They advise us when we might need an attorney’s advice and many other issues a board member might not be privy to. Come on guys wake up and smell the roses! -Gloria F.

You can vote in China, and in your HOA

In addition to my oft repeated “you can vote in China, and in your HOA” to illustrate that democracy is not measured solely by the right to vote, here’s another similarity:

“In China, we hold the welfare of the state above the rights of
the individual” (from the movie, Red Corner, 1997),

which is another of my favorite observations about the New America of HOA-Land.

But most people don’t care about democracy. Until they fall from power or face the anger of the political machines that run their beloved HOA.

AZ CAI’s reaction to the “new era of regulation” of HOAs

In his Sept. 15th seminar, Best Practices for Meetings in an Era of New Regulation, Arizona CAI attorney Scott Carpenter realizes that HOA abuse can no longer be denied or hidden from advocates and from the internet. He asked HOAs to stop activities that will bring further regulation of HOAs, repeatedly using the phrase, “They know us.”

At the very start of the seminar, Carpenter stated that his purpose was not to get around loopholes in the law, or to get around the law, but to show how to “adjust to the new laws.” He then proceeds to play the same “redefine game” that he cautioned HOA boards to avoid — holding workshops rather than meetings because the statutes say nothing about workshops, or not to hold regularly scheduled committee meetings since they are restricted under the statutes. His recommended “adjustments to the law” read like plain, old “finding loopholes in the law.” For example, his advice included:

law doesn’t require you to meet monthly.”

don’t discuss everything – it may go viral on the web

always use closed meetings

restrict the publication of board videos by homeowners

don’t fear emails, but don’t overuse it — will lead to more regulation

hold non-regular committee meetings

use unanimous consent to avoid meetings — just have all board members sign off on the actions — but with care to avoid more regulation

The above is definitely not in keeping with the intent of the Legislature. Carpenter, as a self-promoted expert in HOA law and experienced lobbyist for CAI, denies knowing the meaning or purpose of these “It is the intent of the Legislature” sections included in several of the new bills. An experienced attorney knows well that statute and contract interpretations and clarifications often involve the court looking into the intent of the drafters. He is letting the HOA boards know how to “get around the laws” and the intent of HOA reform legislation, raising the question of good faith conduct by HOA boards if they pursue these loopholes.

And finally, one last point, Carpenter is feeling the heat of the activities by homeowner rights advocates. He laments,

It is the homeowner advocates who say they are on the homeowners side who gave the feedback, the evil conduct of the bad boys of the management companies [no mention of the attorneys]. They’re the ones who have drafted this type of legislation.

This only creates more “us agin them” hostility. It should be noted that he did not deny that abuse goes on in HOAs.

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